HKSAR v. SINGH POPINDER AND OTHERS

CACC 205/2020

[2022] HKCA 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 205 OF 2020

(ON APPEAL FROM HCCC NO. 290 OF 2019)

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R E A S O N S    F O R    J U D G M E N T

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Introduction

1.  The 1^st, 2^nd, 3^rd and 4^th applicants, who were D1, D2, D4, and D5 at trial (and who will be referred to as such in this leave application) were convicted on 13 October 2020 of the following offences under the Theft Ordinance, Cap. 210, after trial before Deputy High Court Judge Yau and a jury:

(i)  robbery (Count 1) against D1, D2, D4 and D5, each by a majority of 5:2;

(ii)  theft (alternative to the charge of burglary in Count 4) against D4 and D5, each by a majority of 6:1; and

(iii)  theft (Count 2) against D5 by a majority of 5:2.

2.  D1 and D2 were each sentenced to 5 years’ imprisonment whereas D4 and D5 were each sentenced to a total term of 5 years and 7 months.

3.  D3, who is not an applicant in these proceedings, was unanimously acquitted of the burglary charge in Count 4 but was found guilty of the alternative offence of theft by a majority of 6:1. He was sentenced to 12 months’ imprisonment.

Overview

4.  The trial involved two robberies and one burglary. The first robbery occurred in a park in Yuen Long on 18 September 2018. A group of men approached the victim (Samat) in a park, beat him up and took his property. The second robbery occurred on 26 September 2018. A group of men arrived at the victim (Kumar)’s flat in Yuen Long, called him outside, beat him up, and took his property. The burglary occurred at another flat in Yuen Long. A group of men gained entry to the flat in the early hours of 27 September 2018 and took property from the flat.

5.  The trial lasted some 26 days. The prosecution relied on the testimony of the victims and their identification evidence. The defence of each defendant, judging from the cross-examination of the prosecution witnesses and their closing addresses, was basically one of frame-up although the identification evidence was also challenged.

Counts 1 and 2

6.  The prosecution case was that D1, D2, D4 and D5 (together with other persons unknown) robbed Samat (Samat Sumit Singh) of HK$450 cash, one Octopus card and one food bank card (Count 1) during which Samat was hit by a stick as well as being kicked and punched.

7.  At trial, Samat testified that he was in a playground on the morning of 18 September 2018 with a friend (Ranjit Singh) when six men approached them. Samat said he immediately recognised five of them as people whom he knew with the respective nicknames of Sunny, Sabu, Mangu, Wakasa, and Bedi. Except for Bedi, Samat later identified them as D1, D2, D4 and D5. Samat said, at the time, D5 called out to him and D4 then asked him for money to which Samat replied that he did not have any. D5 asked Samat for his mobile telephone. Samat gave it to him but D5 then put it in his own bag. When Samat asked for it back, D5 refused (the taking of the mobile telephone was the subject matter in Count 2, against D5 only).

8.  According to Samat, whilst D5 was putting the mobile telephone in his bag, D1 picked up a stick and hit Samat with it once on his back, causing Samat to fall onto the ground. However, D1 continued to hit him with the stick and the rest of the group started to punch him in the course of which Samat said D4 took his wallet from his back trouser pocket inside which were the items particularised in Count 1.

9.  After D4 had taken the wallet, the group continued to punch and kick Samat. According to Samat, the beating lasted about 10 minutes counting from the time D5 took his mobile telephone.

Counts 3 and 4

10.  The victim in Count 3 was Kumar (Maddhesia Birendra Kumar). However, as all the defendants had been acquitted of this count, it would not serve much useful purpose to repeat the details here. Suffice for me to say that Mishra, who was the victim in Count 4, had also testified on matters in relation to Count 3.

11.  For Count 4, Mishra testified that four South Asian males arrived at the door of his house at midnight to half past midnight on 27 September 2018 and pushed their way inside. They stayed for about two hours and took some items away. Subsequently, Mishra positively identified D3, D4 and D5 in the identification parades. The prosecution case was that it was a joint enterprise by the trio to steal whatever valuables they could find (HK$500, one Octopus card, one food bank card and a television set were the subject matters in Count 4). According to Mishra, it was D5 who took the television off the wall but it was an admitted fact that D3’s fingerprints were found on the television set.

Identification evidence

12.  Although each defendant’s case was primarily one of frame-up, counsel for the respective defendants had made submissions in the voir dire proceedings to have the relevant identification evidence ruled out because Samat had provided the photos of D1, D2 and D4 to the police prior to his attending the identification parades, and in the case of D2, he had participated in a confrontational type of identification with only one other suspect present and no actors. The judge gave a reasoned ruling in favour of admitting the evidence.[1]

The defence case

13.  None of the defendants testified but generally, the identification evidence and the credibility of the prosecution witnesses were challenged with the following matters highlighted for the jury’s consideration:

(i)  the relative minor injuries sustained by Samat compared with the attack he described;

(ii)  the time taken (17 days) for Samat to give his first statement to the police;

(iii)  the improbability of someone robbing a Form 8 holder who would not have much money;

(iv)  the piece of wood said by Samat to have been used in the assault was never seized;

(v)  the “displacement effect” in Samat’s identification as he had found the photos on facebook before attending the identification parades[2].

14.  At trial, it was put to Samat that he had made up the robbery as he bore grudges against the defendants and their associates in that he had unsuccessfully demanded from them overdue commission payment which arose from his introducing them to rent accommodation[3]. Samat denied it.

The summing up

15.  The judge’s summing up was detailed and lasted the best part of two days[4]. Proper directions in respect of the necessary matters, including the burden and standard of proof, separate treatment for the different counts, the drawing of inference, the defendants’ right of silence, good character direction in respect of D1, D2 and D5, the concept of joint enterprise and the caution required in dealing with identification evidence were given.

16.  Since this case involved asylum seekers, the judge specifically reminded the jury not to let any views they might have about asylum seekers affect their judgment. As D2 and D5 had made certain statements under caution after their identification parades, the judge also directed the jury on the use of those statements.

17.  Further, in reviewing the prosecution evidence, the judge repeated and highlighted the defence criticisms for the jury’s consideration.

D1’s submissions

18.  D1 was represented by Mr Trevor Beel, who was also his trial counsel, at this leave hearing. Mr Beel advanced three grounds of appeal.

19.  By ground 1, Mr Beel submitted that the judge erred in ruling admissible the identification evidence in view of the fact that there was no investigation by the police as to how Samat had come to obtain the image of D1 and in view of the displacement effect.

20.  By ground 2, Mr Beel took issue with the prosecution case being left to the jury, arguing that the quality of Samat’s evidence, including the identification evidence, was so poor and tenuous that the case should have been withdrawn.

21.  Ground 3 was the general ground of there being a lurking doubt.

D2’s submissions

22.  D2 did not provide any written submissions other than those annexed to his Form XI. His principal complaint appeared to be that the judge did not provide the jury with a copy of the summing up. D2 further argued that Samat was a liar and his evidence was contradicted by that of the police and the interpreter.

D4’s submissions

23.  D4’s grounds of appeal essentially related to matters already canvassed at trial:

(i)  the evidence of Samat was very weak and Samat was a liar. In particular, Samat claimed that he had spoken in English to the police when he was in the hospital and that he had pointed out to the police the piece of wood that was used to hit him, yet the police said such did not happen;

(ii)  Samat had gone to the facebook to look at his photo before attending the parade;

(iii)  there was a lack of DNA and other forensic evidence;

(iv)  there was a 17-day delay between the alleged offence and Samat’s first statement to the police; and

(v)  the judge’s summing up was lengthy and was delivered in a fast pace so much so that the jury had asked for a copy of it which request was rejected by the judge.

D5’s submissions

24.  D5’s grounds of appeal are similar to those of D4 although he put emphasis on the fact that Samat did not mention his name to the police initially, and also that Mishra was not a credible witness.

The respondent’s submissions

25.  Mr Duncan Percy, who was also fiat counsel for the prosecution at trial, represented the respondent. In short, Mr Percy submitted that the summing up was correct, fair and included a comprehensive recital of the evidence. In relation to the jury’s request for a copy of the summing up, Mr Percy maintained that it was not a mandatory requirement and the defence did not make any complaint at the time.

26.  In response to D1’s ground 1, Mr Percy argued that the judge, in exercising his discretion to admit the identification evidence, did so after having heard detailed submissions and having applied the correct legal test.

27.  As for ground 2, Mr Percy submitted that the judge had again applied the correct test and had rightly concluded that, “… where, on one possible view of the facts, there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, I should allow the matter to be tried by the jury.”[5]

28.  As for ground 3, Mr Percy emphasised that there was nothing wrong with the judge’s summing up and that there was no criticism of his directions.

Discussion

D1’s application for leave

29.  Although Mr Beel for D1 raised 3 grounds of appeal, the grounds essentially boiled down to the single complaint about Samat’s identification evidence, which was the only evidence against D1. Before examining this complaint, the following matters should be borne in mind because, in my view, they all have a bearing on whether any of the grounds put forth by Mr Beel is reasonably arguable.

30.  Firstly, Mr Beel raised no crticism, whether in terms of the legal directions or the evidence, about the judge’s summing-up.

31.  Secondly, Mr Beel agreed that if Samat’s evdience was accepted by the jury, it was a case of recognition, not a case of identification of a complete stranger.

32.  Thirdly, D1’s primary case, like that of the other defendants, was one of fabrication in which the identification evidence played no part at all. It was only if the jury were satisfied that Samat was indeed robbed (which would have necessarily involved an assessment by the jury of the much criticised credibility and reliability of Samat), then the case of mistaken identification became relevant. Even so, the erroneous identification was, according to Mr Beel, not simply that Samat had picked up the wrong person in the identification parade but that since Samat had met D1 before, he mistakenly “thought” that D1 was there with the group of men when the robbery took place. This “wrong impression” was then reinforced when Samat found D1’s photo in D4’s facebook. The sighting of this photo by Samat before he attended the identification parade was then said to have tainted Samat’s identification of D1, rendering it unfair and unreliable.

33.  The importance of the first matter should be immediately apparent because if the judge committed no error in the summing-up, then the factual findings made by the jury were in no way tainted by any irregularities and were findings which the jury were, on the evidence before them, entitled to make. As recorded above, Mr Beel did not seek to argue that the judge had mis-directed the jury or had mis-quoted the evidence. In fact, not only had the judge repeated in detail the salient parts of the evidence, he had also reminded the jury the important aspects of the cross-examination and counsel’s contentions, at the same time highlighting for the jury’s consideration the inconsistencies and contradictions identified by the defence. In the circumstances, and given that findings of fact are matters for the jury, any suggestion that D1’s conviction was erroneous would fall within a narrow compass.

34.  On the question of the quality of Samat’s evidence, it should be noted that not only had the jury witnessed for themselves the dynamic exchanges in Mr Beel’s cross-examination of Samat (and that conducted by the other defence counsel), the different dimensions of the defence criticism had also been squarely put before the jury, both in defence counsel’s closing addresses and in the judge’s summing-up. There was no doubt that the jury were fully aware of the alleged weaknesses of Samat’s evidence but yet, by their guilty verdict, the jury must have felt able to rely on the evidence to come to the sure conclusion that D1 was guilty.

35.  Therefore, Mr Beel’s complaint that Samat’s evidence was untruthful and unreliable to the extent that his identification evidence of D1 should have been ruled inadmissible and the prosecution case withdrawn from the jury must be examined against this background and with the evidence viewed as a whole.

36.  In addition, on the account given, the observation made by Samat of his assailants was not of the “fleeting glance” type because according to Samat, when the group of men appeared, either they were talking amongst themselves, so Samat looked at them, or they called Samat’s nickname and so Samat looked at them and walked to them. In either scenario, the assault was not the first thing which happened and Samat was not just lying on the ground right from the beginning, trying to dodge and protect himself without first having an opportunity to make any observation. Instead, there was face to face contact in board day light with some conversations taking place between Samat and the group prior to the assault. It should also be noted that Samat said when he saw the group, he could immediately identify five of them, including D1.

37.  In my view, Samat’s identification evidence was not of a tenuous nature and the observation was not made in difficult circumstances because Samat was able to look at and talk to the men. Further, the observation was not made when Samat was in a state of panic because, according to him, there was nothing about the appearance or manner of the people in the group which gave rise to concern at the beginning of their encounter on that day.

38.  I should also add that although Mr Beel put much empahsis on the danger of an identification made in a parade when the witness had previously seen the photograph of the one identified, the situation in the present case was very different. If Samat’s evidence was accepted, Samat had known D1 as Sunny from his previous encounters with him (the same applied to D2, D4 and D5). D1 was also his facebook friend in 2016 or 2017. Further, Samat’s account was that he had deliberately gone to the facebook in order to retrieve the images of those assailants whom he knew so that the police could follow-up with their investigation. In other words, if Samat was to be believed, he was not merely surfing the net, trying to see if he could come across anyone similar in appearance to any of his assailants. Instead, he already had the appearances of his assailants in mind and he just wanted to get their images for the police.

39.  Similarly, Mr Beel’s argument that Samat merely “thought” that D1 was present at the scene (mis-identification), the wrongful impression of which was reinforced by Samat’s sighting of D1’s photograph in D4’s facebook is, in my assessment, not of much assistance to D1. If the jury were satisfied that Samat had met D1 before and D1 was his facebook friend, and if the jury were satisfied that Samat had made good observation of D1 on the day of the robbery, then whether Samat had or had not seen D1’s photo on facebook before the identification parade was not really material. In this respect, it should be noted that when Samat testified, it was never put to him that he had not met D1 before, nor that D1 was never his facebook friend. Mr Beel, at the hearing before me, accepted that such was the state of the evidence.

40.  Accordingly, having examined the complaint about Samat’s evidence in its proper context, I could not see any of the grounds put forth by Mr Beel as reasonably arguable and I refused to grant leave.

41.  For the sake of clarity, I should mention that although Mr Beel sought to argue that ground 1 (the admissibility of the identification evidence) and ground 2 (the “no case to answer” ruling) are matters of law in respect of which no leave would be required, I did not accept the submission. Clearly, from what I set out above, these two grounds, if not of facts alone, are at least grounds of mixed law and fact for which leave would be required.

D2’s Application for leave

42.  In respect of D2’s complaint that the summing-up was delivered in a fast pace and that the jury had been refused a copy of the summing-up, the matter had to be viewed as a whole and in its proper context.

43.  I do not agree that the request by the jury, per se, was indicative of the jury having difficulties in following the summing-up. In fact, according to the record, after the request was turned down and despite the judge had told the jury that if, during their deliberation, there was any particular aspect of the summing-up that they wished to be reminded of, they could write a note and that particular aspect would be repeated to them[6], the jury did not come back with such a request. Nor did the jury indicate that they had difficulties in understanding the directions given or the evidence reviewed because of the speed at which the summing-up was delivered.

44.  Without speculating as to whether it was just an over cautious move of the jury to ask for a copy, I think the comprehensive summing-up speaks for itself. Not only was D2 unable to identify any error in the judge’s directions, counsel for D1 also made no criticism, whether in terms of the evidence reviewed or in terms of the legal directions given. This ground about the jury’s request is simply not arguable.

45.  D2’s other complaints principally related to the quality of Samat’s evidence. However, those criticisms had been clearly and repeatedly put before the jury, in defence counsel’s cross-examinations, their closing submissions and in the judge’s summing-up. There should be no doubt that the jury were fully aware of the alleged weaknesses. Findings of fact are matters for the jury. If there was evidence before them, as in this case, from which they could properly arrive at a guilty verdict, that verdict could not be impeached simply because a defendant thinks otherwise.

46.  Moreover, since D2 elected not to testify, which was his right, there was nothing before the jury which would help undermining the prosecution case.

47.  Having considered D2’s grounds, I found none of the grounds to be reasonably arguable and I refused to grant leave.

D4’s Application for leave

48.  Apart from providing written grounds of appeal, D4 provided another document to the court on the day of the leave hearing. In that document, D4 mentioned that D1 was granted legal aid while he was not. He further indicated that he would like to adopt the submissions made by counsel for D1 insofar as they were relevant to his case.

49.  In gist, in relation to the robbery offence, D4 complained that Samat was a liar and it was a case of set-up because Samat bore grudges against him. As a result, he was unfairly convicted. In respect of the theft conviction, D4 mentioned in the document that there was no fingerprint and DNA evidence against him and that “PW3 gave non-prejudicial statement”, which after clarification, D4 said what he meant was that PW3 (Mishra) did not give incriminating evidence against him.

50.  For the grounds which are identical or similar to those of D1 and D2, I am not going to repeat my assessment and observations. Suffice for me to say that I do not consider any of those grounds reasonably arguable.

51.  Concerning the theft offence, which was the alternative to the burglary offence in Count 4, it is correct that there was no fingerprint and DNA evidence against D4. However, the most incriminating evidence came from Mishra who told the jury that D4 was one of the members who went to his home that early morning to take the properties away. No doubt, the evidence of Mishra was not without inconsistencies. However, Mishra had been subject to vigorous cross-examination by defence counsel and the judge had repeated in detail Mishra’s evidence, particularly the important parts of the cross-examination and the criticisms made[7]. The judge had also repeatedly reminded the jury that if they were not sure that Mishra had told them the truth, then they should not and could not act upon his evidence.

52.  Accordingly, I dismissed D4’s application for leave.

D5’s application for leave

53.  As set out above, D5’s grounds are identical/similar to those of D4: the jury requested for a copy of the summing up which indicated that they had difficulties understanding the proceedings; Samat was a liar and because of previous grudges, Samat set him up; and the evidence of the police was in his favour. In addition, D5 complained that one of the jurors was found sleeping in the course of the trial.

54.  Again, in order to avoid duplication, for those grounds which are identical or similar to the ones relied on by the other applicants and in respect of which I have already provided my assessment and observations, I shall not repeat them here.

55.  In respect of the complaint that there was a juror found sleeping which matter was said to have been drawn to the attention of the judge by counsel for D4, it is sufficient for me to say this: as in any other case, if, in the course of the hearing, there was any indication from the behaviour or gesture of the jurors that there was a danger of any of them momentarily losing concentration, it would just be right for counsel to draw the matter to the attention of the court so that any further action, if deemed necessary, could be taken. However, the mere fact that such a matter had been drawn to the attention of the court was not to be taken as an indication that any juror had in fact not followed the proceedings attentively. Rather, it is a preventive measure taken to ensure that the jury are paying full attention. Absent any further particulars, I could not see how this would be an arguable ground.

56.  Having considered this complaint of D5 and the other grounds he relied on, I came to the conclusion that leave should be refused.

Conclusion

57.  Accordingly, all 4 defendants’ applications for leave to appeal against conviction were refused. At the end of the hearing, each was explained the right of renewal of the application for leave to appeal but each was also given the “loss of time” warning. All indicated that they understood.